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may generally be called the land-grant railroads-the Northern Pacific, at Saint Paul, Minn.; the Union Pacific, at Omaha; the Kansas Pacific, at Kansas City; the Atchison, Topeka and Sante Fé, at Kansas City, and the Texas and Pacific, at Dallas.

The object of our application to the Union Pacific Railroad Company, which I understand has been the cause of the present inquiry, has been to establish the right of the Baltimore and Ohio Telegraph Company to exchange telegraph business generally with the Union Pacific Railroad Company to and from all points reached by the telegraph lines of that company and its branches and extensions, and later on with each of the other land-grant railroads that I have named. To that end I have been in correspondence with Mr. Charles F. Adams, jr., president of the Union Pacific Railroad Company, for about six months, and the correspondence has been, as I understand, handed to you, Mr. Commissioner.

The COMMISSIONER. I have it.

Mr. BATES. And this correspondence in the Commissioner's hands is for the ready reference of gentlemen on the other side, and can very readily be placed before them, and the correspondence thus made officially is our statement of the case, accompanied with this our application for compliance with our wishes in the matter. I do not know as I need say anything more until gentlemen on the other side have an opportunity of explaining why we are not permitted to have the facilities which we have applied for.

Mr. SWAYNE. Now, if I may be permitted, I should like to ask Mr. Bates one question. The gravamen of what has been said, if I understand the gentleman, is that the land-grant railroads refuse to exchange telegraph business with the Baltimore and Ohio Telegraph Company. Now, it is necessary to my understanding of the matter, and I speak with entire frankness, that I have some definition of what Mr. Bates means by exchange of telegraphic business.

Mr. BATES. If you will permit me, Mr. Commissioner, to sift this matter before

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The COMMISSIONER (interposing). You will pardon me for interrupting you, but I desire to make an inquiry before we proceed further. Will I be furnished with a copy of the report of the proceedings here?

Mr. SWAYNE. Oh, yes, certainly. I do not suppose there will be any trouble about that.

Mr. BATES. Yes, sir; we will furnish a copy. I will say, in reply to General Swayne, that what is meant by au exchange of telegraphic business is, of course, the affording to the public telegraphic facilities to and from the land-grant lines. It would be our purpose, if the application we have made is granted, to offer to the various telegraph lines upon these land-grant railroads a general telegraphic business at the different points of connection destined to the points reached by those lines, and by the Central Pacific and Southern Pacific connecting with those lines, and make such arrangements as shall enable us at the same time to gather in business at the principal points upon the routes of these land-grant lines destined for points on our lines, to be transmitted over their lines to the nearest point of connection with our lines and there handed to us. That would be my idea of exchange of telegraphic business.

Mr. SWAYNE. Now, Mr. Commissioner, my understanding of the fact—and we had better settle the fact before we undertake to settle the rights-my understanding of the fact is that the land-grant roads which are represented here to day receive at all their offices messages brought to them by the Baltimore and Ohio Telegraph Company, if any are brought, precisely on the same terms as if they were brought by any other individual, and if any message is brought to them at any point other than a terminal point for transmission to the care of the Baltimore and Ohio Telegraph Company, or which otherwise indicates that when it reaches a connection with the Baltimore and Ohio Telegraph Company's lines it is to be delivered to that company for further transmission, that it is so received and so delivered. Now, I think we should first inquire whether there is any doubt in the minds of any one as to the completeness of that state of facts.

Mr. CROSS. By "any other individual," do you include any other corporation ? Mr. SWAYNE. Precisely; any other corporation or person.

Mr. BATES. The facts are clearly enough stated by General Swayne, but we come to a stone wall the moment we undertake to ascertain anything in reference to the points reached by the telegraphic lines of the land-grant roads, and the terms and conditions upon which messages will be received, as is indicated in my correspondence with Mr. Charles Francis Adams, president of the Union Pacific Railroad Company.

Mr. SWAYNE. I understand, then, Mr. Commissioner, that what Mr. Bates wants is a list of points to which the land-grant roads are able to transmit telegrams over lines of their own, and also a list of prices of transmission.

Mr. BATES. To the extent you have indicated, yes.

Mr. SWAYNE. If that is the case, it is to be ascertained at all times by inquiry at any office.

Mr. BATES. I disagree with the gentleman.

Mr. SWAYNE. If that is all that is wanted I will undertake to furnish him, or the Commissioner, at once a list of the telegraph offices reached by lines belonging to the land-grant companies or used by them, and I will also undertake to furnish him a schedule of tariff rates, guaranteeing that these tariff rates are executed without any discrimination either in time of transmission or as to rebate or other deductions, from the charge to all persons, individuals, and corporations.

Mr. BATES. Such information would be very valuable to me, and I should be very glad to have the gentleman furnish it, and I will now ask him to do so.

Mr. SWAYNE. But the Commissioner will understand that if this is done it will be done as a matter of gratuity, not as a concession of right. The telegraph offices are open for the Baltimore and Ohio Company, or any human being or corporation, to bring a dispatch and to learn on presenting it what the price of transmission is; but we do not concede it to be any part of the legal requirements of the land-grant companies that they shall advertise or furnish wholesale statements of their prices for the transmission of messages, nor if I furnish that list can I be bound that there may not occur at any time changes subject to fluctuations all the while.

Mr. BATES. I think, Mr. Commissioner, the further discussion of this subject might be cleared a little by reference to the paper which you handed me a moment ago, if I may be permitted to refer to it.

The COMMISSIONER. Certainly, you may refer to anything on file in this office. Mr. BATES (referring to paper just alluded to). Here is a contract between the Union Pacific Railway and the Western Union Telegraph Company, dated July 1, 1881. This contract begins by asserting that the two parties had for some time prior to July 1, 1881, been operating telegraph lines along the various railroads, and a list of contracts is attached to the contract, aud disputes had arisen and suits were pending based upon those contracts, and that as it was desirable to terminate these disputes as far as possible, a new contract was made. This new contract undertakes to define the ownership of the telegraph property on the various roads. It undertakes to give to the Western Union Telegraph Company the exclusive right of way on the Union Pacific road, and it undertakes to say that the Union Pacific Railroad Company will not furnish for any competing line maintaining any competing telegraph line any facilities or assistance that it may lawfully withhold.

Mr. SWAYNE. The construction of other telegraph lines, not for the transmission of messages.

Mr. BATES. I may be pardoned for making my own comments on that clause; perhaps it may have particular reference to facilities for the establishment of competing lines, but

Mr. SWAYNE. What clause do you refer to now?

Mr. BATES. Clause 3 on the first page. I refer to that in connection with my correspondence with Mr. Adams to bear out this point, that while he himself has indicated his willingness to accept telegraphic business from the Baltimore and Ohio Telegraph Company, and while Mr. Atkins, the former vice-president of the Union Pacific Railroad, in his reply to the Commissioner a year ago, indicated the same willingness, and while General Swayne has to-day, on behalf of the railway, said the same thing, yet when we come to close quarters we are unable to get the information, and, as I believe, it is withheld because of this particular clause in the contract that I have referred to, or because of other conditions stipulated in this contract. Mr. Adams, in his letter to me, states that the names of the telegraph offices on his road are well known, but when I ask him for a list of them he states, as General Swayne has to-day, that they do not keep any list.

Mr. SWAYNE. I have not said so.

Mr. BATES. Well, I do not like to absolutely deny the gentleman's statement but it seems almost incredible that the Union Pacific Railroad Company, doing such an immense business as it does, and quite a large part of that business relating to the telegraph, should not have a list of its stations convenient for reference and for the purpose now under consideration, and if the gentleman will furnish me such a list, and with a list of the rates and conditions, so that we may be assured that whatever telegraph business we may tender to the railway company will be accepted by them in strict accordance with the statutes governing that road, we will be quite satisfied. But there is another point in connection with this matter which I think I might speak of now, as General Swayne is here and may be able to answer it. I understand him to say that they would be prepared to make rates for telegraph business from the connecting points to the points reached by their lines. Now, the question would be whether or not local rates, which would be the rates under that arrangement, would be the rates that are now charged the Western Union Telegraph Company for that service. I would like to ask the gentleman that question.

Mr. SWAYNE. I can answer that by saying the rates charged to the Baltimore and Ohio Telegraph Company will always be the same rates precisely as are charged to the Western Union Telegraph Company for like service. But that entails opening up

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quite an extended state of facts, which really is not pertinent to this discussion. At the same time it is enough to say in general terms that over a very considerable portion of this road the Western Union Telegraph Company has its own independent structures, poles, lines, &c., and of course it would not be right to charge the Western Union Telegraph Company on a local station on the land-grant roads, where the lines of the Western Union Telegraph Company run into their station, the same price for receiving and handing over the message as if it had been transmitted all the way over the wires of the land-grant road.

Mr. BATES. I think we have got right to the very point of the discussion. I think that is the great difficulty that is going to be presented to you, Mr. Commissioner, or to whoever has the matter in hand to report upon, and that is as to whether the Union Pacific Railroad Company will accept from any telegraph company the messages presented, or whether they will not.

To quote the language of the act of 1864-and you will pardon me for quoting from it, because I wish to have it in the record-section 15 of the act of July 2, 1864, entitled "An act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean," and which, as I understand, refers to the Union Pacific Railway Company, and to all the other land-grant roads that I have named in my remarks, is as follows:

"And be it further enacted, That the several companies authorized to construct the aforesaid roads are hereby required to operate and use said roads and telegraph for all purposes of communication, travel, and transportation, so far as the public and the Government are concerned, as one continuous line; and, in such operation and use, to afford and secure to each equal advantages and facilities as to rates, time, and transportation, without any discrimination of any kind in favor of the road or business of any or either of the said companies, or adverse to the road or business of any or either of the others, and it shall not be lawful for the proprietors of any line of telegraph, authorized by this act, or the act amended by this act, to refuse or fail to convey for all persons requiring the transmission of news and messages of like character, on pain of forfeiting to the person injured for each offense the sum of $100, and such other damage as he may have suffered on account of said refusal or failure, to be sued for and recovered in any court of the United States, or of any State or Territory of competent jurisdiction."

The point I make is that the Union Pacific Railway Company particularly, and to a less extent the Central Pacific and the Northern Pacific roads, have undertaken to alienate their telegraph franchises by certain contracts which are in your possession, and which are very complicated as to details, and which for the very reason that General Swayne has just mentioned, makes it nearly impracticable for these railroad companies to accept and handle business for other telegraph companies than the Western Union, giving equal rights and requiring the same conditions of all, and thereby preventing the Baltimore and Ohio Telegraph Company from accepting business at its offices for points reached by these various land-grant telegraph lines, except upon prepayment at the point of connection with the land-grant lines, the local tariff or toll, substantially as is or may be collected at the point of junction with the Western Union line. Do I make myself clear?

The COMMISSIONER. Yes, I understand the point you make.

Mr. BATES. In other words, a message received at New York for Salt Lake, accepted by the Western Union Telegraph Company, would be transmitted, as I take it, assuming that Salt Lake is an office of the Union Pacific Railway Company, and the operator in the Omaha office, their agent, would accept it at the point of connection between the two systems and put it on its way to destination. Now, the Union Pacific Railway Company would not require of the Western Union Telegraph Company on that particular message any payment whatever. As I read the contract that is a fact.

Now, it is obvious that if the Baltimore and Ohio Telegraph Company should take a like message from New York to Salt Lake and tender it to the Union Pacific Railroad Company at Omaha, the railway company would have one of two things to do, either to comply with these statutes and treat us exactly as the Western Union and not charge us anything, or treat us as they would a local customer at Omaha and serve us for the local tariff, which would be the same as from New York. In either case, of course, we would not be satisfied. The purpose of the statute, as I read it, would not be fulfilled by any means, and the other question would be, what would be the rate and what would be the condition under which a message of that class would be accepted by the Union Pacific Railway Company?

The COMMISSIONER. Mr. Bates,, in your letter of December 2, 1884, addressed to Mr. Adams, you stated that the purpose of your company was clearly indicated, and that an arrangement for the interchange of business was desired; what, precisely, do you mean by that?

Mr. BATES. I undertook to answer that a little while ago, but I do not think I made myself clear. It would be our purpose, as before stated, to connect with each of

these land-grant railroads at the point of connection, accept business at all stations upon our lines from Boston to Galveston and intermediate points, destined for points on these land-grant roads, and tender them to the land-grant roads at the points of connection. That would be in bulk; what I have spoken of in detail in reference to a message from New York to Salt Lake.

The COMMISSIONER. Do you claim that under the act of 1864 you have the right to insist upon a contract with these parties to give you a traffic arrangement by which you may send them any messages to be delivered as a part of a continuous line to points upon their line or lines within the control of the Union Pacific Railroad?

Mr. BATES. To that I would say, no, sir. I do not ask from them a contract, but I do ask of them that with reference to business generally and in detail, that they will accept it and handle it upon the same terms precisely, without discrimination. In other words, that they will handle our messages or the messages of any telegraph company without discrimination.

Mr. SWAYNE. Or individuals?

Mr. BATES. Or individuals; and in view of the fact that telegraph business by the very nature of things is made up of details, and its transactions extending over days and weeks and months in the handling of accounts, &c., some general arrangement for the settlement of accounts at least, would, as I take it, be a matter of necessity. The COMMISSIONER. Do you claim that you have a right to insist upon an arrangement with them by which they shall keep accounts of your business?

Mr. BATES. Yes; if it is necessary, as I think it is, such an arrangement should be made to fulfill their obligations under their charter.

The COMMISSIONER. That is what I am trying to get at.

Mr. BATES. Yes, sir; I do think that such an arrangement should be made to fulfill their obligations under their charter.

The COMMISSIONER. Now, what discrimination do you make in this regard? Mr. Swayne has stated that they will accept from the Baltimore and Ohio Telegraph Company any messages which the company may deliver for transmission, and which they would receive as if from a private individual, and transmit it at the usual rates to its destination without discrimination. Do you claim that there should be such an arrangement by which they should be obliged to receive your messages the same as they would from a connecting line of their system without the payment to them of charges at the receiving point?

Mr. BATES. Whatever they do for the Western Union Telegraph Company with respect to the acceptance of telegrams and the keeping of accounts in connection with those telegrams, we claim as our right under the statutes referred to.

The COMMISSIONER. The Union Pacific Railway Company claim it has made a contract by which the Western Union Telegraph Company had to erect certain wires, at the cost of the telegraph company.

Mr. BATES. That is a different question. That we have nothing to do with.

The COMMISSIONER. Do you claim that you would have a right to transact business over their lines upon the same terms as the telegraph companies with which they have special contracts?

Mr. BATES. Leaving out the question of the fact of the Western Union Telegraph Company's independent lines, yes, sir. In other words, the Union Pacific Railway Company under its charter was required to maintain and operate a telegraph line. If you will pardon me one moment I will again refer to the contract which the Union Pacific Railway Company has made with the Western Union Telegraph Company. It is as follows: "Now, therefore

Mr. WILSON. What paragraph are you reading?

Mr. BATES. I am about to read the fifth and sixth clauses of the contract. I will read:

"Fifth. The railway company agrees to furnish at its own expense all the labor, except a foreman, for the maintenance, repair, and renewal or reconstruction of the existing lines and wires along all of the railway company's railroads, and for the construction, maintenance, repair, and renewal or reconstruction of such additional wires or lines of poles and wires as may be required for commercial or railroad telegraph purposes along said railroads, and along future branches and extensions thereof, and along new railroads constructed or acquired by the railway company, except as modified in the sixth clause hereof.

"The telegraph company shall furnish a foreman skilled in the work of telegraph construction, who shall have charge of the construction and reconstruction of the lines and wires and the direction of the labor furnished by the railway company for such purposes, said foreman to be subordinate to the superintendent mentioned in article twelfth of this agreement.

"Sixth. Each party hereto shall pay one-half of the cutire cost of all poles, wire insulators, tools, and other material used for the maintenance, repair, and renewal or reconstruction of existing lines and wires along all of the railway company's railroads, and for the construction, maintenance, repair, and renewal or reconstruction of such

additional wires or lines of poles and wires as may be required for commercial or railroad telegraph purposes along said railroads and along future branches or extensions thereof, and along new railroads constructed or acquired by the railway company, until the total number of wires shall amount to three for the exclusive use of each party hereto between Council Bluffs and Ogden, two for the exclusive use of each party hereto between Kansas City and Denver; and one for the exclusive use of each party hereto on all other portions of the railway company's railroads, branches, and extensions.

"Each party hereto shall pay the entire cost of the construction, maintenance, and repair and renewal or reconstruction of wires for its exclusive use in excess of the number herein before mentioned, the material of the telegraph company for additional wires to be transported free of charge by the railway company over its own lines, as hereinafter provided.

"The telegraph company agrees to furnish at its own expense all blanks and stationery for commercial or public telegraph business, and all instruments, main and local batteries and battery material for the operation of its own and the railway company's wires and offices. The telegraph company shall maintain the main batteries in good working order; but if said batteries are at places where the telegraph company has no battery-man, or other employés who can attend to the same, in such cases the railway company's employés shall keep said batteries in good working order, if any of such employés at such place are competent to do it."

In other words, the railway company acknowledges, and has all along acknowledged, its obligation in this matter. Its obligation has been defined in the decisions of the United States courts, with which of course we are all familiar, and if the railway company has, in order to do this very thing, made an arrangement with the Western Union Telegraph Company, that fact should not prevent them from accepting and handling business for the Baltimore and Ohio Telegraph Company, or any other company, upon the same terms and conditions, leaving out the question of the independent line of the Western Union Company. That is all we claim, and that is of course what we shall demand.

The COMMISSIONER. What bearing upon this question has the act of July 2, 1864, entitled "An act for increased facilities of telegraph communication between the Atlantic and Pacific States and the Territory of Idaho"? It was under that act that the United States Telegraph Company built their line on the line of the Kansas Pacific Railroad. Has that act any bearing upon the question?

Mr. SWAYNE. Very great bearing.

Mr. BATES. I do not think it has any bearing at all. In point of fact, as I understand it, this is the situation: The United States Telegraph Company did not build a line on the Kansas Pacific Railroad line, which is the one which was taken up in the decision I spoke of a while ago.

The COMMISSIONER. And yet that was the case in which the Union Pacific Railroad Company moved to dissolve the injunction, which came before Judge Miller. Mr. BATES. That has no bearing upon this case.

Mr. SWAYNE. It has built a line between Omaha and Ogden; perhaps I may take this matter up right there; it may be necessary to take it up by way of comparison, although we do not contend it is very material in this connection; that is, we do not concede it as necessary to go down to it. In the first place, an act was passed authorizing or contemplating the creation of a telegraph line overland. As far back as 1860 Congress had passed an act making certain grants in aid of the construction of an overland telegraph line. That act was passed on the 16th of March, 1860, and is found in the 12th Statutes at Large, page 41. On the same day of the passage of the act of July 2, 1864, was enacted the act for increasing the facilities of telegraph communication between Atlantic and Pacific States and the Territory of Idaho.

Mr. BATES. To which act do you refer, this telegraph act or the railroad act? Mr. SWAYNE. I now refer to the act of July 2, 1864, in aid of the construction of the Pacific Railroad, as the first one of the railroad acts. The act of July 2, 1864, is the first one of the land-grant railroad companies which at all contemplates or provides for the erection of telegraph lines by a land-grant railroad.

Mr. BATES. May I interrupt the gentleman one moment? He is either right or wrong. I think he is wrong as to his statements, and if so I should like to have an opportunity of giving my view of the matter.

Mr. SWAYNE. Be that as it may, on the passage of that act of July 2, 1864, or upon the same day was passed the act to which the Commissioner has made reference, the act for increased facilities for telegraphic communication overland.

The COMMISSIONER. You mean the act of July 2, 1864, entitled "An act for increased facilities of telegraph communication between the Atlantic and Pacific States and the Territory of Idaho."

Mr. SWAYNE. Yes, sir. Now that act provides that the pre-existing telegraph line may do either of two things. It may either enter into an arrangement with the railroad company, in which event all the provisions of the railroad act of July 2, 1864,

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